Claro Healthcare 20/20 Platform Terms of Use

These Terms of Use (“Terms”) govern use and access to the Claro Healthcare 20/20 Platform (“Platform”). In connection with the written services agreement(s) (collectively, the “Engagement Agreement”) between your organization, as a client (“Client”) of Kaufman, Hall & Associates, LLC and/or its subsidiary, Claro Healthcare, LLC (collectively, Kaufman Hall), Client is being granted access to the Platform on the terms and conditions hereof. These Terms are part of and incorporated into the Engagement Agreement.

1. USE OF THE PLATFORM.
   1. 1.1    Client and its Authorized Users (as defined below) shall not (i) rent, lease, lend, sell, sublicense, assign, export, encumber or otherwise transfer the use of the Platform or Client’s rights hereunder; (ii) permit others to use the Platform for any purpose (including the U.S. Internal Revenue Service or other governmental authorities, unless required by law, and then, if legally permissible, only after prior written notice to Kaufman Hall); (iii) use the Platform on behalf of any other party (including use to obtain information for or otherwise benefit any vendor of competitive software products); (iv) use the Platform on any service bureau or time-sharing system or to provide information processing, outsourcing or similar services; (v) access or use all or any part of the Platform in order to build a product or service which competes with the Platform; (vi) use the name “Claro Healthcare”, “Kaufman Hall” or any other trademark or trade name associated with Kaufman, Hall & Associates, LLC, in connection with any use of the Platform or its output, or make any reference to Claro Healthcare or Kaufman Hall directly or indirectly, in any advertisement, external sales presentation, news release, release to any professional or trade publications, or marketing materials or efforts without Kaufman Hall’s prior written consent; (vii) modify, disassemble, decompile or otherwise reverse engineer the Platform or Content; or (viii) access or use the Platform outside of the United States of America. Authorized Users shall only access the Platform through secure devices provided by Client.
   2. 1.2    “Authorized User” means all employees identified by Client in writing, that are designated by Client as authorized to use the Platform. Authorized Users also include all persons, including all agents, contractors, consultants, and their respective employees, that Client designates to use the Platform and which have been approved by Kaufman Hall. Client’s use of the Platform is restricted to use solely for the benefit of the site or sites specified in the Engagement Agreement (each, a “Site”) by those Authorized Users who have responsibilities in connection with the Site(s). For any Authorized User who is not an employee of Client, Kaufman Hall’s explicit prior written consent for such contractors and consultants to access and use the Platform is required as well as each contractor’s execution of a confidentiality agreement acceptable to Kaufman Hall.

2. OWNERSHIP AND ACCESS.
   1. 2.1    Kaufman Hall is and shall continue to be the sole owner of the Platform and any modifications or other derivative works based thereon (except for those portions of the Platform not owned by Kaufman Hall, but which Kaufman Hall has full right to make available to Client under these Terms), and any derivatives, suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client or any other party relating to the Platform. The Platform is Confidential Information, as defined by the Engagement Agreement, protected by copyright law, is of a proprietary nature, and contains trade secret information. Client and its Authorized Users shall not copy, print, reproduce, distribute, download, frame, mirror, republish, display, transmit, link to, modify, transfer or assign, create any derivative works based on the Platform or store any copies thereof nor permit any other person to do so. Client shall (i) use all reasonable efforts, but in no event less than due diligence and care, to preserve the proprietary character of the Platform, (ii) treat the Platform as confidential, (iii) prevent any unauthorized access to, or use of, the Platform and, in the event of any such unauthorized access or use, promptly notify Kaufman Hall, and (iv) not remove or obscure Kaufman Hall’s or any other party’s copyright or proprietary rights notices. Access to the Platform is restricted to those Authorized Users of Client who have a need to know information regarding the Platform for the use permitted hereunder. Because the Platform is protected as a trade secret, the Platform is not permitted to be disclosed in response to requests made pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) or any other data disclosure law that exempts disclosure of information or documents protected as trade secrets. Client shall notify Kaufman Hall of any actual or threatened breach of these provisions, and Client shall cooperate with Kaufman Hall in enforcing such provisions.
   2. 2.2    To the extent required to provide the Platform to Client, such as, by way of example and not limitation, to customize the Platform for Client, Client grants to Kaufman Hall a nonexclusive, limited, royalty-free right and license to use such trademarks, services marks, logos and other source identifiers of Client (collectively, the “Client Marks“) as Client specifies solely for the purposes permitted under these Terms. Client is and shall continue to be the sole owner of the Client Marks. Client agrees to indemnify, defend, and hold Kaufman Hall, its subsidiaries and their respective officers, directors, members, employees, affiliates, shareholders, agents, successors, representatives and assigns harmless against any and all liabilities, losses, damages, claims, debts, investigations, fines, penalties, costs, expenses and settlements (including attorneys’ fees) arising out of or related to any claim that Kaufman Hall’s use of the Client Marks as permitted herein infringes the intellectual property rights of any third party.
   3. 2.3    The Platform may provide Client with access to and use of certain materials provided by third parties. Kaufman Hall reserves the right and sole discretion to determine which third-party materials are made available in the Platform provided to Client. Kaufman Hall may modify or discontinue, temporarily or permanently, at any time and from time to time, access to or use of third-party materials (or any function or feature thereof) with or without notice to Client and without any liability to Client.
   4. 2.4    Kaufman Hall does not own any data, information, or material that Client submits to the Platform (“Client Data”). Client has the sole and exclusive right to use all Client Data derived from Client’s use of the Platform for any purpose related to Client’s business, subject to the restrictions in Section 7.5 herein, provided that Kaufman Hall may use and access the Platform, including the Client Data, (i) to display the Client Data to Client and its authorized users, (ii) to process the Client Data for Client in connection with providing the services to Client, (iii) to respond to Platform or technical problems pursuant to these Terms, and (iv) as may be required by law. Kaufman Hall may also use aggregated reports on user demographics and traffic patterns to better provide services to Kaufman Hall’s clients. Client, not Kaufman Hall, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Client Data.

3. DURATION AND TERMINATION.
   1. 3.1    Client may terminate its access to the Platform at any time by written notice to Kaufman Hall. Kaufman Hall may terminate Client’s access to the Platform: (i) as provided in Section 7 below; (ii) at any time upon breach of any of Client’s obligations under these Terms or the Engagement Agreement, including the failure of Client to fulfill its obligation to pay any fees in a timely manner; (iii) at any time by providing at least sixty (60) days prior written notice to Client. The provisions of Sections 1, 2, 5, 6, and 7 shall survive any termination of these Terms or the Engagement Agreement.
   2. 3.2    Unless otherwise provided by written agreement to extend Client’s license to the Platform, upon the conclusion of the applicable Client Project for which access to the Platform was granted to Client or termination of the Engagement Agreement, Client’s right to access and use the Platform and all other related Kaufman Hall Confidential Information shall immediately cease and Kaufman Hall will have the right to deny access to the Platform by Client. Upon such termination, Client shall (a) immediately stop access to and use of the Platform and related Kaufman Hall Confidential Information; (b) shall return all copies of the documentation and any Kaufman Hall Confidential Information related to the Platform to Kaufman Hall; and (c) delete all such electronically stored Confidential Information from any and all storage media possessed or controlled by Client. Upon termination or expiration of the Engagement Agreement or these Terms, Kaufman Hall will delete the Client Data applicable to the terminated Platform from its servers. Client shall provide Kaufman Hall with a written certification signed by an officer of Client that Client has complied with the provisions of this paragraph.

4. UPDATES.

Kaufman Hall may, in its sole discretion, provide updates to the Platform from time to time that incorporate generally applicable federal and/or state changes and any other content changes, as required. Any such update(s) to the Platform will be made available to Client on the terms set forth herein so long as Client is then current with respect to fee(s) in the applicable Engagement Agreement.

5. LIMITED WARRANTY.
   1. 5.1    Kaufman Hall warrants that for so long as these Terms remain in effect that the Platform will materially conform to the documentation provided by Kaufman Hall, including for example, user guides and technical documentation as modified from time to time.
   2. 5.2    EXCEPT FOR THE LIMITED WARRANTY DESCRIBED ABOVE, THERE ARE NO WARRANTIES BY KAUFMAN HALL TO CLIENT OR ANY OTHER PERSON OR ENTITY FOR THE PLATFORM, THE RELATED MATERIALS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR OTHER OBLIGATIONS ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; ALL SUCH WARRANTIES ARE EXPRESSLY AND SPECIFICALLY DISCLAIMED. KAUFMAN HALL EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CLIENT’S USE OF THE PLATFORM WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE, OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO HIPAA, THE GRAMM-LEACH-BLILEY ACT OF 1999, THE SARBANES-OXLEY ACT OF 2002, OR OTHER FEDERAL OR STATE STATUTES OR REGULATIONS. KAUFMAN HALL DOES NOT WARRANT THAT THE PLATFORM WILL BE ERROR OR BUG-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS CODE, WILL PERFORM IN AN UNINTERRUPTED MANNER, OR WILL MEET THE CLIENT’S REQUIREMENTS. KAUFMAN HALL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR ANY OTHER LOSS OR DAMAGE RESULTING FROM THE TRANSFER OF DATA OVER COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, AND CLIENT ACKNOWLEDGES THAT THE PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.
   3. 5.3    The warranties and any Client remedies associated therewith shall be null and void, and Client may not rely upon them if the Platform has not been used in accordance with these Terms and the Platform’s documentation.
   4. 5.4    Kaufman Hall makes no representation that the Platform is appropriate or available for use in locations other than the United States of America. If Client uses the Platform from outside the United States of America, Client is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries.
   5. 5.5    THE CONTENT CONTAINED IN THE PLATFORM IS NOT INTENDED TO AND DOES NOT CONSTITUTE MEDICAL ADVICE, AND NO DOCTOR/PATIENT RELATIONSHIP IS FORMED. THE ACCURACY, COMPLETENESS, ADEQUACY, OR CURRENCY OF THE CONTENT IS NOT WARRANTED OR GUARANTEED. THE USE OF THE PLATFORM, THE CONTENT, OR OTHER INFORMATION ON THE PLATFORM IS AT THE CLIENT’S OWN RISK. THE CONTENT MADE AVAILABLE THROUGH THE PLATFORM AND OTHER MATERIALS ARE FOR INFORMATIONAL PURPOSES ONLY. THE PLATFORM (INCLUDING BUT NOT LIMITED TO THE CONTENT) ARE NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. Client SHOULD ALWAYS SEEK THE ADVICE OF PHYSICIANS OR OTHER QUALIFIED HEALTH PROVIDERS WITH ANY QUESTIONS REGARDING A MEDICAL CONDITION. CLIENT SHOULD NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING IN OR ON THE PLATFORM. THE PLATFORM DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC TESTS, PRODUCTS, PROCEDURES, OPINIONS, OR OTHER INFORMATION THAT MIGHT BE MENTIONED IN OR ON THE PLATFORM.

6. INFRINGEMENT INDEMNIFICATION.

If Client promptly notifies Kaufman Hall in writing of a claim that the Platform infringes a presently issued U.S. patent or copyright, Kaufman Hall will defend such claim at its expense and will pay any costs and damages that may be awarded against Client, subject to any limitations as provided in the Agreement. Kaufman Hall will not indemnify Client, however, if the claim of infringement results from (a) use of the Platform in a manner contrary to the instructions given to Client by Kaufman Hall, (b) Client’s alteration of the Platform or customizations made to the Platform at Client’s direction, (c) use of the Platform in combination with other software or materials not provided by Kaufman Hall, (d) use of the Platform for purposes other than permitted under these Terms, (e) the Client’s use of the Platform after notice of the alleged or actual infringement from Kaufman Hall or any appropriate authority, or, if applicable, (f) use of other than the most recent version of the Platform made available to Client by Kaufman Hall. It is a condition of this indemnity that: (i) Kaufman Hall shall have sole control of the defense of any such claim and all negotiations for settlement; (ii) Client promptly notifies Kaufman Hall in writing of the claim; and (iii) Client cooperates fully to the extent necessary and executes all documents necessary for the defense of such claim. Kaufman Hall shall not be obligated to indemnify Client under any settlement made without Kaufman Hall’s consent or in the event Client fails to cooperate fully (at Kaufman Hall’s expense) in the defense of any claim. If in Kaufman Hall’s opinion a claim is likely, or if Kaufman Hall settles a claim, or if Client’s continued use of the Platform is enjoined by reason of infringement of one of the rights described above, Kaufman Hall will (at its option and expense) promptly either (1) procure for Client rights to continue using the Platform, (2) modify or replace the Platform so that no infringement exists, or (3) discontinue and terminate the Agreement. Except as expressly provided in this Section 6, Kaufman Hall shall not be obligated to assume the defense or satisfy any claim that might be made against Client by any other party for infringement or for any other reason arising out of Client’s operation or use of the Platform. Subject to any additional limitations of liability in the Engagement Agreement, this section 6 states the Client’s sole and exclusive rights and remedies, and Kaufman Hall’s (including Kaufman Hall’s employees’, agents’ and sub-contractors’) entire obligations and liability for a third party’s infringement claim against Client’s use of the Platform.

7. CLIENT RESPONSIBILITIES.
   1. 7.1    Client is responsible for: (i) determining its desired results from use of the Platform; (ii) evaluating the Platform’s capabilities; (iii) procuring, installing, operating, maintaining and servicing, at its cost, the equipment, software (including, without limitation, current browsers, but excluding any third-party software embedded in the Platform), facilities, telecommunications links, network connectivity and all other elements of Client’s computer network required for successful connection to the Platform; (iv) successfully operating the Platform; and, (v) complying with all applicable laws, statutes and regulations. Client understands that the Platform may contain calculations that may be based, in part, upon interpretations of federal or state guidelines. Client understands that Client will review the effect of the interpretations contained in the Platform, and data generated by the Platform, with Kaufman Hall. However, Client is solely responsible for the consequences of using any data generated by the Platform. The Client or other entity billing Medicare and/or third-party payers on Client’s behalf is solely responsible for the accuracy of the codes assigned to the services and items in the medical record.
   2. 7.2    Client acknowledges that certain forms made available to Client in connection with the Platform, including but not limited to physician documentation requests (e.g., query forms), are being provided solely for the convenience of Client. Accordingly, the information contained on or reflected in such forms is subject to obsolescence or may require modification in order to reflect future changes in coding rules and/or CMS/QIO documentation requirements. It is expressly understood and agreed that it is Client and not Kaufman Hall who bears sole responsibility for the use of such forms, as well as any updates or modifications to the information contained in any such forms.
   3. 7.3    Client shall indemnify, defend and hold Kaufman Hall, its officers, directors, employees, affiliates, shareholders, agents, successors, representatives, and assigns harmless from and against any and all claims, causes of action, demands, damages, losses, costs and expenses (including attorneys’ fees) arising out of or related to any claim, demand, loss or action resulting from operation or use of the Platform and related output by Client. These indemnity obligations of Client shall not apply to any such claims covered by Kaufman Hall’s indemnity obligations in Section 6.
   4. 7.4    Client shall be solely and fully responsible for the security of all usernames and passwords provided by Kaufman Hall to Client or created by Client using the Platform. Client is entirely responsible for maintaining the confidentiality and security of its passwords (including, if applicable, the passwords of each Authorized User accessing the Platform by means of an account established by Client) and for all actions that may be taken by anyone using the Platform after signing in with Client’s username(s) and password(s). Kaufman Hall is entitled to rely on and act upon instructions received under Client’s username(s) and password(s). Passwords may not be used by more than one individual and Client is prohibited from transferring or sharing passwords with any other person. Any violation of the foregoing shall result in an immediate termination of Client’s access rights to the Platform as well as liability to Kaufman Hall for all damages resulting from such breach. Client shall ensure that users access the Platform only through secure devices provided by Client and that users exit or log-off from their account at the end of each session of use. Kaufman Hall shall not be responsible for (i) any unauthorized access to, or alteration of, Client’s transmissions or data, or any material, information, or data sent or received, regardless of whether the data is actually received by Kaufman Hall, or (ii) any transactions entered into through the Platform or through the Client’s passwords.
   5. 7.5    Client and its Authorized Users shall not in connection with any access or use of the Platform, (i) transmit through the Platform any illegal material of any kind or any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright or right of publicity, is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, or causes damage or injury to any person or property; (ii) knowingly or intentionally transmit any material that contains software viruses or other harmful or deleterious computer code, files or programs or any device or thing which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; pre-vent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise) such as Trojan horses, worms, time bombs or cancelbots, (iii) knowingly or intentionally interfere with or disrupt the integrity of any data or computer-based information or any servers or networks connected to the Platform or violate the regulations, policies or procedures of such networks, (iv) knowingly or intentionally attempt to gain unauthorized access to the Platform, through password mining or any other means, (vi) harass or knowingly or intentionally interfere with another user’s use and enjoyment of the Platform, or (vii) access or use any software or services for which Client has not been granted a license pursuant to these Terms.

8. SYSTEM REQUIREMENTS
   1. 8.1    Supported web browsers include the latest versions of Google Chrome and Microsoft Edge. The Platform may function in other browsers (Safari, Firefox, etc.), but compatibility is not directly supported.
   2. 8.2    Authorized User screen resolution should be set to 1024 x 768 or higher. Use of the Platform on mobile devices is not supported (for example, small hand-held devices that have a display screen with touch input and/or a QWERTY keyboard and may provide users with telephony capabilities).